Baker v. Squier

• Decision Date: 23 February 1898
• Citation: 143 Mo. 92,44 S.W. 792
• Parties: BAKER et al. v. SQUIER et al.
• Court: Missouri Supreme Court

44 S.W. 792

143 Mo. 92

BAKER et al. v. SQUIER et al.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

SUPREME COURT — JURISDICTION — DEDICATION.

1. Where the issue is whether plaintiff has an easement in defendant's land, the trial involves title to real estate, so that appeal should be to the supreme court.

2. A common-law dedication, which can be established only by convincing evidence of intention of the donor to appropriate the land to public use and proof of acceptance by the public, is not shown by the fact that when a county building was constructed, the four feet of the lot nearest the street were not built on, but were paved as other parts of the sidewalk.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Suit by M. C. Baker and others against John J. Squier and another. Bill was dismissed, and case appealed to court of appeals, which affirmed the judgment; and from it the record is brought to the supreme court by certiorari on application of plaintiffs. Judgment of circuit court affirmed.

James Baker, for appellants. Harrington & Pepperdine and Goode & Cravens, for respondents.

BRACE, P. J.

From a decree of the circuit court of Greene county dissolving a temporary injunction and dismissing the plaintiffs' bill and a judgment in pursuance thereof for damages on the injunction bond, the plaintiffs appealed to the St. Louis court of appeals, where the decree of the circuit court was affirmed. After an unsuccessful effort by plaintiffs for a rehearing in that court, and for a transfer of the case to this court, upon their application to this court the record of the case was brought here by certiorari. The judgment of the circuit court was affirmed by the court of appeals in pursuance of the following opinion, delivered by Bond, J., in which all of his associates concurred:

"This action is by the owner and tenants of a lot and building to enjoin the tenants of a contiguous building from adding a bay window to the same on four feet of ground in front of said building. The equities alleged are that the said four feet of ground whereon the bay window is about to be erected were dedicated to the public as a part of the pavement of the public square of Springfield, Missouri, by the county court, when the building itself was constructed, and that the present use of said four feet of ground attempted by defendants is a public nuisance, inflicting special injury on the property rights of the plaintiffs. The defense is nondedication and ownership of the four feet of ground in question by the landlords of defendants under mesne conveyances running back to a grant from the county court. On the trial, plaintiffs' petition was dismissed, and damages assessed at $150, from which decree this appeal is taken.

"It appears from the evidence that in 1885 the county court of Greene county owned the lot whereon the building occupied by defendants is situated, and erected said building at the same time that plaintiff was erecting one on her adjacent lot; that upon the request of plaintiff the county court set its building back four feet from the front boundary of its lot, and plaintiff placed hers back ten feet from her front line, thus making an arcade entrance to the public square of the town 22 feet wide connecting the square with Olive street, and with an opening on the square in a diagonal line about 32 feet wide; that the portion of the lot thus left in front of the county building was paved as other parts of the sidewalk; that there was a party wall between the two buildings, the cost of which was divided between the plaintiff and the county; that there was no record of the agreement as to location of its building made by the county court with plaintiff nor was the same evidenced by any writing, but rested solely in the parol declaration of the majority of the county court, and the further fact that it was acted out by the county court in placing its building four feet from the front of the lot whereon it was situated. The evidence was conflicting as to the effect of the proposed addition of the bay window to the house of defendants on the property rights of plaintiff, but it fairly appeared that such addition was injurious to the value and uses of plaintiff's building.

"It is claimed by appellants under the foregoing facts that they are entitled to an injunction on the grounds alleged in their petition. There are two...